Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. 37-2010-00150799-PR-PL-CTL Julia C. Kelety, Judge.
AARON, J.
I.
INTRODUCTION
Cynthia G. Fleischer petitioned the probate court to probate the will of Sally Ann Foote, her mother. The probate court determined that it did not have subject matter jurisdiction over Foote's estate because Foote was not domiciled in California at the time of her death, and there were no assets to administer in California.
Fleischer appeals, contending that there is not substantial evidence supporting the trial court's findings with respect to Foote's domicile or the location of Foote's estate's assets.
Cathleen Fleischer Redinger, Real Party in Interest and Respondent, did not participate in this appeal.
We conclude that there is substantial evidence to support the trial court's determinations. We therefore affirm the order of the trial court denying Fleischer's probate petition.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Foote was married to Edward Fleischer for over 40 years. Foote and Edward Fleischer had three children, including appellant Cynthia Fleischer. The pair lived at a residence in La Jolla during their marriage. In 1991, Foote and Edward Fleischer established the Edward P. Fleischer and Sally F. Fleischer Family Trust (the Trust). The couple assigned all of their tangible personal property, as well as the La Jolla residence, to the Trust. Edward Fleischer died in 1994, leaving Foote as the sole trustee of the Trust.
A number of subtrusts came into existence from this single trust after Edward Fleischer's death. We will refer to the original trust, and the subsequent subtrusts, as "the Trust."
After Edward Fleischer's death, Foote married Martin Chamberlain in the summer of 1994. Foote and Chamberlain began spending time in Washington and made a decision to have a residence there. They built a home on property that Chamberlain's family owned on Whidbey Island.
During the 1990s, Foote consulted with advisors about changing her residency from California to Washington. She spoke with Karen Remmes, her accountant, in 1995 or 1996 about her residency status. Remmes understood that it was Foote's intention that her home in Washington be her primary residence. Similarly, Foote told her estate and tax planning attorney that she had taken steps to change her residence to Washington, including changing her bank accounts, driver's license, voter registration, and automobile registrations. She indicated that she intended to spend seven or eight months out of the year in Washington. Foote had similar discussions with her investment advisor.
Foote registered to vote in Island County, Washington in July 1996, and also acquired a Washington driver's license that year. In 1996, Foote and Chamberlain filed a part-year resident tax return in California, indicating their move to Washington.
In 1997, Foote executed an amendment to the Trust which provided that the Trust and all of its subtrusts would be domiciled in Washington. The amendment also provided that the trusts were to be governed by Washington law to the extent permitted, and that "any other references in the trust to California shall be changed to the State of Washington."
In 1997 and 1998, Foote and Chamberlain filed nonresident California income tax returns for income they received from California-based sources. Foote filed no California income tax returns after 1998, and on Foote's federal income tax returns for tax years 1998 through 2007, the Whidbey Island residence was listed as her residence.
Foote and Chamberlain purchased a condominium in Seattle so that they could stay in the city on days they visited Seattle.
Foote received her mail in Washington, and directed that her tax and financial information be mailed to her at the Whidbey Island residence. Foote designated her La Jolla house as a second home on her homeowner's insurance policy. Foote arranged for the statements regarding real estate taxes, utilities, and insurance related to the La Jolla house to be sent to her at her Washington address.
In April 2002, Foote executed a codicil to her will in which she stated that she was "now a resident of Island County, State of Washington."
Foote registered two vehicles in Washington, one in 2002 and the other in 2007.
Foote and Chamberlain restated the Delta Trust, which was their community property trust, and declared in that restatement "that they are domiciled in the State of Washington, owning as their primary residence property located at Whidbey Island, Washington."
Foote kept detailed typed and handwritten accounts of her activities over a number of years. Between 2002 and 2007, Foote's chronologies of her and Chamberlain's activities indicated that they had spent the majority of their time each year in Washington (approximately seven months out of each year).
Foote executed a second codicil to her former will on May 3, 2007, in which she again recited that she was a resident of Washington.
In November 2007, Foote hired an attorney in Washington to assist her in obtaining a divorce from Chamberlain. Foote discussed with her attorney the issue of her residency, because the attorney had to ensure that there was a jurisdictional basis to file the divorce proceeding in Washington. The impression that the attorney received from Foote was that she intended to remain a resident of the state of Washington after the divorce. The attorney proceeded to file the divorce action in Washington.
During the divorce proceedings, both Foote and Chamberlain indicated in various court filings that they were residents of Washington, and a trial court in Washington found that Foote was, and continued to be, a resident of Washington. As part of the property settlement in the divorce, Foote negotiated that she be permitted to remain in the Whidbey Island residence for two years. Foote believed that it would take two years to build a new residence on a different piece of property on the same island. Foote had purchased 25 acres of land near the residence that she had shared with Chamberlain and planned to build a new permanent home on that parcel of land. Foote intended to build "her dream home, " and left the impression with her divorce attorney, as well as the owner of the construction company she had hired to build a home on Whidbey Island, that she intended the new home to be her permanent and primary residence, where she could live out the remainder of her life.
In 2008, Foote took steps to rent out her La Jolla home on a long-term basis and informed the real estate agent that she did not plan to return to the La Jolla house. In the summer of 2008, Foote informed her housekeeper in Washington that she did not intend to return to La Jolla that winter because " 'there was nothing' for her there." Rather than traveling to La Jolla during the winter as she had done in prior years, Foote remained in Washington during the winter of 2008-2009. She died in Washington on January 12, 2009. Foote voted in Washington in November 2008, two months before her death.
Foote had a pour-over will, dated August 29, 2008, in which she bequeathed her remaining personal property to the Trust. Foote named respondent John Charles Edwards as executor of the pour-over will, and also named him as a successor trustee of one of the subtrusts of the Trust.
B. Procedural background
On January 12, 2010, Fleischer, a resident of Colorado, filed a petition to probate Foote's pour-over will in superior court in San Diego County. In her petition, Fleischer acknowledged that there were "no assets of the probate estate, " and that the "estimated value of the assets subject to probate administration is zero." Fleischer stated that she was attempting to establish a probate estate "for the purpose of litigation, " in order "to toll the one year statue such that claims can be prosecuted against Sally, her estate and her Survivor's Trust for breach of fiduciary duty, fraud, undue influence, looting of trust assets, and for a constructive trust over assets of the Survivor's Trust."
Edwards objected to Fleischer's probate petition, contending that the San Diego County court lacked jurisdiction to probate Foote's will because Foote was a domiciliary of Washington and had no property in California that required administration.
The parties submitted trial briefs and evidence to the court.
On July 9, 2010, the trial court issued a written decision denying Fleischer's petition for probate. The court stated, "After a thorough review and consideration of the evidence, the Court finds that Ms. Foote was not a domiciliary of California when she died, but rather of the State of Washington." The court also determined that Foote did not own any property that would be subject to probate in California. Neither party requested a statement of decision.
Fleischer filed a timely notice of appeal from the order.
Fleischer subsequently requested that this court take judicial notice of the papers filed in a separate appeal. Edwards opposed the request. Fleischer has failed to state why the documents are relevant to this appeal, as required pursuant to California Rules of Court, rule 8.252, subdivision (a)(2)(A), and has also failed to include copies of the documents that she requests be noticed, as required pursuant to California Rules of Court, rule 8.252, subdivision (a)(3). We hereby deny Fleischer's request for judicial notice.
III.
DISCUSSION
Fleischer contends that the trial court erred when it found that San Diego County did not have jurisdiction to probate Foote's will because Foote was domiciled in Washington, rather than in San Diego County (or elsewhere in California). Specifically, Fleischer argues that the trial court should have found jurisdiction under Probate Code section 7051, based on Foote's domicile, which, Fleischer contends, was in San Diego, not Washington. In the alternative, Fleischer argues that the trial court should have found jurisdiction under section 7052, based on property that Foote owned that was located in San Diego County. Finally, Fleischer makes a number of additional arguments, which are not based on the jurisdictional statutes, as to why the trial court should have asserted jurisdiction to probate Foote's pour-over will in San Diego County. We conclude that all of Fleischer's arguments are without merit.
Further statutory references are to the Probate Code unless otherwise indicated.
A. Legal standards
1. Standard of review
The parties agree that the questions on appeal are questions concerning the trial court's finding of the underlying facts with respect to the jurisdictional issue. Fleischer acknowledges that this court should review the trial court's findings that Foote was a domiciliary of Washington and that she did not have any property subject to probate in San Diego County to determine whether there is substantial evidence supporting them. (See Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712 ["The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Fns. omitted.)].)
2. Applicable law
"Generally speaking, a will should be submitted in the first instance to the forum at the domicile of the testator. But in California a probate court may acquire jurisdiction over the estate of a deceased person in either of two situations: the domicile of such person within the state, or the presence of assets within the state.... [¶] Similar statutes have been enacted in other states, and in applying them it has been held that the appropriate court of a jurisdiction in which assets of the estate of a nonresident testator are found may grant probate of his will even though the will has not been presented for probate in the state of his domicile." (Estate of Estrem (1940) 16 Cal.2d 563, 566-567 (Estrem), italics added.)
With respect to the first situation in which a California probate court may acquire jurisdiction over the estate of a deceased person, section 7051 provides, "If the decedent was domiciled in this state at the time of death, the proper county for proceedings concerning administration of the decedent's estate is the county in which the decedent was domiciled, regardless of where the decedent died."
Although the Probate Code does not define "domicile, " the Elections Code provides that a person's domicile is "that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning, " and states that "[a]t a given time, a person may have only one domicile." (Elec. Code, § 349, subd. (b).)
Courts have supplied a similar common law definition, concluding that domicile is " 'the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively;... it includes both the act of residence and an intention to remain; a person may have only one domicile at a given time....' " (In re Marriage of Amezquita & Archuleta (2002) 101 Cal.App.4th 1415, 1419-1420, citing Smith v. Smith (1955) 45 Cal.2d 235, 239; see also Chapman v. Superior Court (1958) 162 Cal.App.2d 421, 426, quoting 16 Cal.Jur.2d, p. 649, § 4) [" 'To establish a domicile, two things are necessary: (1) the taking up of a physical or actual residence in a particular place, and (2) the intent to make it a permanent abode.' "].) A person "may have only one domicile at a given time, but he may have more than one physical residence separate from his domicile, and at the same time." (Smith v. Smith, supra, at p. 239.)
The question of where a person is domiciled is normally a mixed question of law and fact. That is, where there is conflicting evidence, as opposed to stipulated and uncontradicted facts, a reviewing court will uphold the findings of the trial court if there is substantial evidence to support them. (Estate of Katz (1944) 66 Cal.App.2d 687, 689; Noble v. Franchise Tax Board (2004) 118 Cal.App.4th 560, 567.)
With respect to the second situation in which jurisdiction may be required, section 7052, subdivision (b) governs. That statute provides that "if the nondomiciliary decedent did not die in this state, any county in which property of the nondomiciliary decedent is located" has jurisdiction over the estate. However, section 13100 establishes that probate in California need not occur unless the decedent possessed assets in California valued in excess of $100,000.
Section 13100 provides:
B. There is substantial evidence to support the trial court's determination that Foote was not domiciled in California at the time of her death
Fleischer contends that Foote's domicile was in San Diego County at the time of her death, and that the trial court erred in finding otherwise. We conclude that there is substantial evidence to support the trial court's findings that Foote was not domiciled in San Diego County at the time of her death, and that she was domiciled in the State of Washington.
First, there is abundant testimony from a number of Foote's advisors that Foote deliberately changed her primary residence from California to Washington, and that she intended that her Washington residence be her permanent abode. Foote changed the location of her bank accounts to Washington, obtained a Washington driver's license, and registered her cars in Washington. Foote registered to vote in Island County, Washington, and, indeed, voted there a mere two months before her death. Foote received all of her mail at her Washington residence—including mail pertaining to her La Jolla residence, such as tax bills, utility bills, and insurance invoices. Moreover, Foote identified the Washington address as her permanent address on all of her tax returns, and filed a nonresident tax return for income that she received from California sources.
Beyond this, Foote spent more time in Washington than in California during her final years. Further, although she had often spent significant periods of time in California each year, just prior to her death, she had expressed an intention to remain in Washington and not return to California. In keeping with this expressed intention, Foote did not visit California in the winter of 2008-2009, the winter during which she died. All of this constitutes substantial evidence to support the trial court's finding that Foote was domiciled in Washington at the time of her death.
Fleischer appears to contend that one piece of evidence should trump all of the other evidence in the record and establishes that Foote was domiciled in California, not Washington, at the time of her death. Fleischer relies on Foote's 2008 will, in which Foote stated that she was a California resident. The evidence demonstrates, however, that the recital that Foote was a resident of California was a drafting error on the part of Foote's attorney, and that the attorney believed that this part of the will was not drafted in a manner that reflected Foote's wishes. When previous codicils to her will were prepared, Foote had specifically requested that the codicils indicate that her residence was in Washington, not California. Combined with the other evidence of Foote's intention that Washington be the state of her primary residence, it appears that the recitation that Foote was a resident of California in the 2008 will was a mistake, and that it did not accurately reflect Foote's intentions with respect to her residency.
Even assuming that Foote's recitation in her 2008 will regarding her residence could be viewed as indicating that Foote considered herself to be a resident of California, this would still be insufficient to establish that she intended to be domiciled in California. Foote could have been a resident of both California and Washington, but be domiciled in Washington. Further, even if the statement in the 2008 will could be viewed as providing evidence of Foote's domicile, as opposed to evidence of residence only, this still would not support reversal of the court's finding because there is abundant evidence to support the trial court's finding that Foote was not only a resident of Washington, but that she was domiciled there, as well.
Fleischer also contends that Edwards should be estopped from taking the position that Foote was domiciled in Washington on the ground that he acknowledged, in a different proceeding, that Foote was a resident of California. Specifically, in April 2009, Edwards, in his capacity as successor trustee to one of the subtrusts, petitioned the trial court in San Diego County to reform a deed to the La Jolla house and to confirm his status as successor trustee. In providing the basis for jurisdiction and venue in San Diego County, Edwards stated that "Sally died at Oak Harbor, Washington, but as a resident of the State of California." Again, even assuming that Foote's residency in California could be established by means of Edwards's attorney's statement, this still would not constitute evidence that Foote was domiciled in California. As noted above, a person can have more than one residence, but only one domicile. Thus, not every residence is one's domicile, and evidence going to residency is not necessarily evidence of domicile.
Fleischer's final argument with respect to the question of Foote's domicile involves an attempt to demonstrate that Foote "only attempted to create the façade of a 'domicile' in Washington to avoid paying California state income tax." The question before us is whether there is substantial evidence to support the trial court's finding that Foote was domiciled in Washington—i.e., whether there evidence that Foote took up physical residence in Washington and intended to make Washington the location of her permanent abode. As we have outlined above, there is abundant evidence supporting both of these findings. Foote's reasons for making Washington her domicile are of no consequence to our determination.
C. There is substantial evidence to support the trial court's determination that Foote did not leave property in California that would be subject to probate
Fleischer contends that the trial court erred in failing to exercise jurisdiction over Foote's estate on the ground that Foote possessed California-based assets that would be subject to probate and exceeded $100,000 in value at the time of her death. We consider, in turn, the evidence with respect to each item of property that Fleischer identifies, and conclude that there is substantial evidence to support the trial court's determination that Foote "owned no property in the State of California requiring probate in California."
Fleischer acknowledges that normally "there is no need to probate a decedent's will in California unless the assets affected by his or her death exceed $100,000.00." She contends, however, that "there were non-trust assets in excess of $100,000.00 owned by [Foote] [in California] at the time of her death."
Fleischer first identifies California trust assets, which Fleischer believes include accounts and assets worth more than $15 million, and the La Jolla residence, as evidence of property that Foote owned in California at the time of her death. However, these items of property were held in trust, as Fleischer acknowledges. Thus, these assets are not part of Foote's personal estate.
Fleischer next refers to a 2003 BMW that Foote possessed in California at the time of her death. However, Foote assigned all of her tangible personal property, including her automobiles, to the Trust. Thus, the 2003 BMW was trust property, not personal estate property, and therefore is not subject to probate in California.
Fleischer also attempts to rely on an individual retirement account (IRA) that Foote held with Merrill Lynch, apparently in California. However, the proceeds of that account transferred immediately upon Foote's death to her designated beneficiaries. The account is therefore not subject to probate. (See Estate of Petersen (1994) 28 Cal.App.4th 1742, 1746 [property excluded from probate includes property that has been disposed of by provision in a written instrument for nonprobate transfer].)
Fleischer also asserts that "[a]dditional non-trust assets of [Foote's] included checks that were either issued to her individually after death or cashed after death." For a variety of reasons, the evidence is sufficient to support the trial court's determination that these checks, or the cash obtained from them, do not confer probate jurisdiction in the trial court.
The first check to which Fleischer refers is identified as a "$23,000.00 Puge[]t Sound refund check issued to [Foote]." However, that check "had something to do with the permitting process on the Moonlight property that [Foote] had purchased [on Whidbey Island]. And that check turned right around and went back out because it really belonged to the Builder who had fronted that money." The evidence thus demonstrated that the funds from this check were not part of Foote's estate.
The second check on which Fleischer relies is a 2008 federal income tax refund check in the amount of $100,371. This check was made payable to Edwards as trustee, indicating that these funds were part of the trust, not part of Foote's personal estate. Foote had apparently prepaid the income taxes for her Survivor's Trust during 2008, and this check was a refund of some of that money.
Fleischer next refers to "trustee's fees paid to [Foote] after death in [the] amount of $54,325.00" To the extent that any fees that Foote earned as a trustee may have been paid to her in her individual capacity, it would appear that Foote earned those funds while she was both residing in, and a domiciliary of, Washington. Fleischer has provided no legal or evidentiary reason why those funds should be considered to be California assets, as opposed to Washington assets, for purposes of estate administration, particularly given the nature of those funds as moveable personal property. (See Civ. Code, § 946 ["If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile"].)
The Appellant's Appendix pages to which Fleischer cites as evidence of this $54,325 trustee's fee payment are a 2008 tax return document prepared after Foote's death by her accountant, Karen Remmes. This tax return does not appear to show the existence of "trustee's fees" in the amount of $54,325. It does demonstrate, however, that Foote claimed as "other income" "TRUSTEE FEES" in the amount of $169,453. Fleischer has not directed us to evidence in the record of the particular check for these trustee's fees that she contends were paid to Foote after Foote's death.
Fleischer also refers to "[s]ettlement funds of $14,224 from an Enron class action lawsuit." However, these funds were deposited into one of the Trust accounts prior to Foote's death (but had not cleared at the time of her death), and there is no evidence to support Fleischer's implied contention that this check was a personal asset.
Other property to which Fleischer points in an attempt to demonstrate that it would have been proper for the San Diego court to probate Foote's personal estate include (1) a $2,500 refund check from Scan Design, apparently for furniture that Foote had ordered for a condominium that Foote had considered purchasing in Seattle; (b) an earned but unpaid trustee's fee owed to Foote from the Marital Trust in the amount of $2,139; and (3) a utility refund check in the amount of $705 for utilities that Foote had prepaid for both of her houses. Because all of these assets are moveable personal property, the trial court could properly have considered the situs of such property to be the domicile of the owner—i.e., Washington, and not California. (See Civ. Code, § 946.)
Finally, Fleischer contends that Foote possessed mineral rights in Ventura County that were held outside the trust. There are a number of reasons why the evidence supports the trial court's finding that this property was insufficient to confer jurisdiction in the San Diego County Superior Court. First, Fleischer failed to present any evidence as to the value of such rights, if any. The only evidence to which either of the parties cites concerning the value of such mineral rights suggests that those rights are, essentially, worthless. Second, these mineral rights are apparently held in the name of Edward Fleischer, and Cynthia Fleischer has provided no evidence as to what interest, if any, Foote may have had in these mineral rights. Finally, even if Fleischer had presented evidence demonstrating that Foote had some interest in the mineral rights at the time of her death, San Diego County would not be the proper county in which to probate this California asset, since the asset is located in Ventura County. (See § 7052, subd. (b) [county in which the property of a nondomiciliary decedent is located is proper county in which to probate that property].)
D. There is no other basis for probate jurisdiction
Fleischer makes a number of other, ancillary arguments in which she appears to suggest that the trial court should have exercised jurisdiction over her probate petition, regardless of whether Foote was domiciled in California or whether there is estate property in California. For example, Fleischer argues that "[t]he San Diego Superior Court has routinely exercised subject matter jurisdiction over [Foote's] various trusts for more than the last ten years, " and "[t]he course of action followed by the San Diego Superior Court for more than ten years should not suddenly be revoked based upon Edwards' self-serving hearsay evidence which directly contradicts his own declaration under penalty of perjury that [Foote] died as a resident of the State of California." Fleischer therefore contends that the court "ought to admit the pour-over will to probate where it has already exercised jurisdiction over the trust which is the beneficial target of the will."
Fleischer also argues that this court "should not limit itself to the issue of domicile" for purposes of determining whether the probate court has jurisdiction over Foote's estate, but instead, should "assess all the contacts that [Foote] had with the State of California and with her property situation in California." With respect to this argument, Fleischer notes that Foote's trusts are California trusts, and that Foote's "primary advisors were licensed and doing business in California." Fleischer also contends that "[Foote's] intent was to probate in California, " relying on her further unsupported contention that Foote was "not present in California for temporary or transitory purposes."
Finally, Fleischer essentially seeks the assistance of this court to allow her to pursue her claim against Foote's estate, maintaining that if this court "upholds the lower court's order to dismiss [Fleischer's] probate petition, she will have no protection from the contest clause which the lower court already ruled for in [Fleischer's] favor, " and she "would then be barred from pursuing her creditor's claim by the one-year statute of limitations...."
Fleischer offers no legal authority to support the idea that any of these contentions could provide the court with probate jurisdiction. The Probate Code clearly identifies only two possible bases on which a trial court may assert jurisdiction over a probate proceeding: 1) the court may exercise jurisdiction over a probate matter involving the estate of an individual who was domiciled in California at the time of his or her death; or 2) a California court in a particular county may exercise jurisdiction over a nondomiciliary's estate when estate property is located in that county. There is no authority that probate jurisdiction may be based on an individual's contacts with California or the fact that the person may have created trusts in California; nor is there authority that would permit a California court to exercise probate jurisdiction as a matter of equity, as Fleischer suggests when she complains that she may have no other way of bringing her claim against the estate. (See Estate of Jimenez (1997) 56 Cal.App.4th 733, 739-730 ["Although the probate court has all the powers of the superior court when considering cases brought before it under the Probate Code, its jurisdiction is limited in the sense that it exercises only such powers over decedents' estates as conferred upon it by statute. [Citation.]"]; see also Estate of Buckley (1982) 132 Cal.App.3d 434, 444 [" 'The superior court sitting in probate has only those powers which are granted by statute and such incidental powers, legal and equitable, as enable it to exercise the powers granted. [Citations.]' [Citation.] Thus, it has been said that 'the jurisdiction and powers of the Probate Court are wholly statutory. It is in this sense that it is sometimes called a court of limited jurisdiction, since it must look to express statutes for its jurisdiction and procedure. [Citations.]' [Citation.]"].)
For these reasons, we reject Fleischer's alternative arguments that the trial court erred in failing to exercise probate jurisdiction over Foote's estate.
IV.
DISPOSITION
The order of the trial court is affirmed.
WE CONCUR: HUFFMAN, Acting P. J.NARES, J.
"Excluding the property described in Section 13050, if the gross value of the decedent's real and personal property in this state does not exceed one hundred thousand dollars ($100,000) and if 40 days have elapsed since the death of the decedent, the successor of the decedent may, without procuring letters of administration or awaiting probate of the will, do any of the following with respect to one or more particular items of property:
"(a) Collect any particular item of property that is money due the decedent.
"(b) Receive any particular item of property that is tangible personal property of the decedent.
"(c) Have any particular item of property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a lien on real property."